Driving Reform 1
Austin Constitution Meetup Group
May 14, 2009
Presenter: Jon Roland
Article V Amendment Process
Draft amendments used as pressure
The idea is not necessarily to get amendments
adopted, and it is certainly not to call a
constitutional convention. It is to get as many
people as possible to all support the same
language that expresses how we want the
Constitution to be interpreted and applied. This
could eventually include 34 state legislatures all
calling on Congress to propose those same
amendments, leaving it only necessary to get 4
more to ratify.
Article on how this might work
State Calls for An Article Five Convention:
Mobilization and Interpretation, by Gerard
Magliocca.
Next, we examine some draft amendments:
Clarifying amendments
These do not make substantive changes in what
was originally understood:
Clarification of "right"
In this Constitution all rights are rights against the
action of government officials, or immunities, not
entitlements to receive some material benefit.
Every immunity is a restriction on delegated
powers, and every delegated power is a restriction
on immunities. Delegated powers and immunities
partition the space of public action.
Common law writs
All persons have the right to a presumption of
nonauthority. No person shall be denied or
delayed more than 20 days in receiving a fair
hearing and decision on the merits on a writ of
quo warranto, habeas corpus, prohibito,
mandamus, procedendo, certiorari, scire facias, or
other prerogative writ, or on a demurral. The order
granting the relief sought shall issue by default if a
hearing is not held or a decision not made.
Stare decisis
On all constitutional issues precedents shall be
regarded as only perhaps persuasive and never
binding. Constitutional text shall be construed only
on historical evidence of the meaning of the terms
for, first, their ratifiers, and second, their framers.
Equity and prudential decisions shall not be
regarded as precedents.
Clarification of "regulate"
The power to regulate shall consist only of the
power to restrict the attributes or modalities of the
object regulated, and not to prohibit all attributes
or modalities.
Clarification of "necessary and
proper"
A power shall be regarded as "necessary and proper" only if it is
essential to making the effort defined by an expressly delegated
power, not to do whatever may be convenient to get a desired
result, such as full compliance, for which the power might be
exercised, and then only in a manner that is reasonable for a
proper public purpose and not abusive. The powers to tax, spend,
promote, regulate, and prohibit (or punish), shall each be
construed as distinct, with none implied by any of the others, and
none shall be exercised as a way to avoid the lack of a power to do
one of the others: Spending or taxing shall not be done to achieve
a regulatory, promotional, or punitive purpose for which there is
otherwise no delegated authority. Criminal prosecution shall not be
done to achieve a taxing, spending, promotional, or regulatory
purpose.
Fully informed jury
In all criminal jury trials, and all jury trials in which government,
whether general, state, or local, shall be a party, parties shall have
the right not to have decisions by the bench made before all
arguments can be made before the jury, excepting only arguments
on defense motions in limine that cannot be made without
disclosing evidence properly excluded. Jurors shall receive copies
of all applicable constitutions, statutes, court precedents, and legal
arguments, including those of intervenors and amici curiae, and
access to an adequate law library in which they can do research.
Access to grand jury, appointment of
prosecutors
No person shall be unreasonably impeded from
access to a grand jury, who, if they should return
an indictment or presentment, may appoint that
person or any other to prosecute the case, and
shall decide whether any official shall have official
immunity from suit.
Clarification of "militia"
The primary meaning of "militia" shall be "defense activity", and
only secondarily those engaged in it, or obligated to engage in it.
All citizens and would-be citizens have the legal duty to defend the
constitutions of the United States and their state, and the members
of society, from any threat to their rights, privileges, or immunities,
in response to a call-up by any person aware of a credible threat.
Any call-up that does not require everyone to respond shall select
those required by sortition. Jury duty shall be regarded as a form of
militia duty. Militia may not be kept in a called up status beyond the
duration of an emergency. Congress and state legislatures shall
have the power to enforce this duty by appropriate legislation.
Readiness of "militia"
Militia shall be maintained in a state of readiness sufficient to
overcome any regular military force it might encounter. Those
who may engage in militia shall have any weapons in
common use by regular military, subject only to the directives
of local elected unit commanders during operations while
called up. If Congress or any state or local legislative body
shall fail to provide for organizing, training, or equipping militia
units, persons shall not be impeded from organizing, training,
and equipping themselves independently.
Clarification of "bill of attainder"
A bill of attainder shall consist of any legislative
disablement of an immunity, either for an
individual, group, or the people in general, without
proof beyond a reasonable doubt, decided by a
jury in each individual case, that he or she has
committed a crime or is dangerously incompetent.
Clarification of "title of nobility"
A title of nobility shall consist of any legislated
privilege or immunity, not enjoyed by all, or to the
detriment of others, that is not essential for the
performance of legitimate official duties, and a
grand jury may authorize civil or criminal
prosecution of an official for exceeding his
jurisdiction or abusing his discretion.
Clarification of "commerce"
"Commerce" shall consist only of transfers of title
and possession of tangible commodities from a
seller outside a state to a purchaser inside that
state. It shall not include primary production,
manufacturing, sale within a state, possession,
use, or disposal, nor shall it include the activities
of those engaged in such transfers. It shall not
include energy, information, or financial or
contractual instruments.
Clarification of "declaration of war"
A declaration of war shall specify the state or
organized body that is the enemy, the casus belli
or casus foederis requiring its issuance, the
commencement date, and the terms for its
conclusion. The identification of the enemy shall
be sufficiently explicit to allow persons of common
understanding to recognize them, and not be left
to executive officials to define the boundaries of
who is included.
Clarification of "piracy"
"Piracy" shall consist only of warlike acts
committed by a foreign nonstate actor, or by a
domestic nonstate actor against foreign persons
or property. Letters of marque and reprisal make
the person to whom they are issued a state actor,
and under a declaration of war all citizens are to
be regarded as state actors with respect to the
foreign state defined in the declaration.
Clarification of "trial by jury"
Trial by jury in criminal cases is not a right that
may be waived by the defendant. It is a mandate
even if the defendant pleads guilty. The number of
jurors must be twelve. They must be randomly
selected from the general body of citizens. They
may not be asked about their knowledge,
experience, or opinions about the law in voir dire.
They must be unanimous to convict but not to
acquit, and failure to convict shall be deemed
acquittal. This provision applies to all criminal
cases, national, state, or local.
Powers in nonstate territories
Congress shall not have power within nonstate
territory in excess of powers provided by the
constitutions of at least three states, being those
that delegate the least power to their governments
on the same subjects.
Disablement of rights
Congress shall not have power to disable a right
or penalize any person on the basis of an
administrative or due process proceeding in
another jurisdiction, or lack thereof, or an
administrative or due process proceeding in the
same jurisdiction that does not explicitly disable
the right as part of the final order of the court,
upon conviction by a jury for a crime or a
unanimous verdict finding dangerous
incompetence.
Clarification of "speech" and "press"
"Speech" and "press" shall include the production
and distribution of any communication, private or
commercial, other than inducement to immediately
commit a crime or act of war, or to give aid and
comfort to a declared enemy.
Clarification of treaty power
Government shall exercise no power, based on a
treaty, not otherwise delegated to it by this
Constitution, other than to set international, state,
or territorial boundaries.
Clarification of pardon power
A person may be pardoned only after conviction,
and the pardon does not nullify the conviction. It is
only a declaration that the executive will not
enforce it. A declaration by a president or state
governor that he will not enforce a criminal
conviction against a person, does not bar
enforcement by another person to whom a
warrant to do so may be issued by a court of
competent jurisdiction.
Clarification of sovereign immunity
Sovereign immunity of a state or the nation shall
not be a bar to suit, only to execution of judgment
against assets not provided by an act of Congress
or the state legislature for payment of claims.
Rule of construction
If there is any significant doubt concerning
whether an official has a power, or a person has
an immunity from the exercise of a power, the
presumption shall be that the official does not
have the power, or conversely, that the person has
the immunity.
Standing
No person shall be denied standing to privately
prosecute a public right for at least declaratory or
injunctive relief, even if he or she has not incurred,
or does not expect, personal injury resulting from
the failure to grant such relief.
Remedial amendments
These correct errors or omissions:
Contumacy
Congress shall have power to prescribe the
penalty for contumacy, but no judge shall have
power to punish by fine, imprisonment, or other
penalty, other than by incarceration for a period
not to exceed ten days per court session, without
conviction by a jury in a trial in which another
judge shall preside.
Income tax amendment
The amendment proposed by congress in 1909 to
"have power to lay and collect taxes on incomes,
from whatever source derived, without
apportionment among the several States, and
without regard to any census or enumeration",
was never ratified, or if it was, is hereby repealed
and rescinded retroactively. Taxes on equal
exchanges, such as on the recipient of salary or
wages for labor, shall not be taxable to a party
who may not pass on the cost to a buyer.
Official misconduct
Congress shall have power to punish for official
misconduct, including the violation of the rights,
privileges, or immunities of any person, violation
of any oath or affirmation, dereliction of duty,
failure to supervise, or conduct unbecoming.
Judicial officers
Judicial officers shall consist of all persons sworn to duty in a
court of the United States or subdivisions thereof, including
but not limited to court presidents, judges, magistrates, clerks,
bailiffs, attorneys, witnesses, trial jurors, or recorders.
Presidents, magistrates, and clerks shall not be appointed
permanently to a particular court, but periodically reassigned
to courts and cases by sortition, with presidents or judges
reassigned at random to courts each 180 days, and at
random to cases, and trial jurors selected at random to each
case.
Ceded parcels
Parcels ceded to the exclusive jurisdiction of
Congress by consent of a state legislature must
be specifically described by metes and bounds at
the time of cession, and all state citizens of such
parcel shall remain citizens of the ceding state for
all elections to offices of the state or the Union.
The boundaries of such parcels shall be clearly
marked to give notice to any person entering or
leaving which jurisdiction he or she is in.
Impeachment of Vice-President
In a trial on impeachment of the Vice-President he
shall not preside over the Senate.
Substantive amendments
These go beyond the original understanding:
Judicial appeals
At each level of appeal a case shall first be heard
by a randomly selected panel of three, appealable
to a randomly selected panel of nine, and thence
appealable to either a randomly selected or en
banc panel of twenty-seven, depending on the
number of judges assigned to that court.
Rule of decision in judicial panels
Any multimember judicial panel must be
unanimous to sustain a claimed power of
government against the claim of a citizen that the
government lacks such power. If there is any
doubt concerning whether an official has a
delegated power, the presumption shall be that he
does not. Courts shall not defer to the judgment of
legislative or executive officials, but shall require
strict proof of their findings or authority, with a
presumption of nonauthority.
Decision of jurisdiction
Any question of which court, national, state, or
local, shall have jurisdiction, shall be decided by a
grand jury of citizens selected at random, if
possible, from outside the jurisdictions of the
courts in contention.
Pollution
Congress shall have power to regulate or prohibit
substances or actions which are likely to cause
resource degradation or depletion or injury to
people across state, territorial, or national borders,
but not those confined within the borders of a
state or territory.
Coastal waters and airspace
Congress shall have exclusive legislative
jurisdiction over coastal waters from the low tide
mark out to a distance of three miles, and over
airspace at or above 1000 feet above terrain
features, including the power to regulate the
movement of vessels through such territory.
Broadcast bands
Congress shall have exclusive legislative
jurisdiction over the allocation of broadcast bands.
In rem forfeitures forbidden
Any claim against a nonperson must specify an
owner, even if it is initially an unknown owner, and
the last possessor shall be presumed the owner
unless title to another is proved.
State secrets
Congress shall have power to punish for
disclosure of state secrets properly so designated
by a court of competent jurisdiction, but it shall
also have power to punish the concealment of
official misconduct under the guise of state
secrecy.
Court opinions
Opinions of all courts, majority, concurring, or
dissenting, shall be signed by each judicial officer
participating, and all decisions and opinions shall
be published except for state secrets. The
summary, findings, orders, and commentary shall
be clearly separated and labeled as such.
Recording of legal proceedings
Except in an emergency in which recording is
impossible, all legislative, judicial, and
administrative proceedings, other than grand jury
meetings, shall be recorded with current state of
the art audio and video technologies, archived,
and released as Congress or a state legislature,
or a court of competent jurisdiction, shall direct.
Persons present in a legislative conference or
court shall not be barred from recording the
proceedings except to forbid them from disclosing
the members of the jury before the trial is
concluded.
Supermajority for criminal penalties
Congress or a state legislature shall not enact
criminal penalties without a vote of 94% of the
members, not just of the members present and
voting.
Proxy voting in legislative bodies
elected by population
Members of the United States House of Representatives, and
houses of state legislatures whose members represent
political subdivisions that elect a number of representatives in
proportion to their population, shall elect representatives at
large, and the number of allocated representatives receiving
the most votes shall be declared elected. Each such elected
representative shall cast the number of votes he or she
received in the last election in all proceedings of the house to
which elected. Each candidate shall, prior to election, declare
a list of successors if he or she becomes unable to serve, or
is removed from office, who shall be appointed to replace him
or her.
Firearm exclusion zones
Congress shall have power, on territory under its
exclusive jurisdiction, and state legislatures, on
territory under their exclusive jurisdiction, to forbid
weapons within penal facilities, courthouses, and
government offices, provided that they provide for
a secure system for checking in weapons on
entry, and return on leaving, and guarantee the
safety of persons within against all injury they
might be able to avoid by having the means to
defend themselves or others.
Weapons of mass destruction
Congress shall have power, on territory under its
exclusive jurisdiction, and state legislatures, on
territory under their exclusive jurisdiction, to forbid
unsupervised possession of destructive devices or
weapons each discharge of which can produce
the death or injury of more than 1000 individuals
spread over a space of 1000 square meters and a
time of one hour.
Eminent domain
Congress shall have the power of eminent domain
only on territory for which it has exclusive
jurisdiction, and state legislatures only on
exclusively state territory. State legislatures must
consent to Congress taking by eminent domain
any parcels within their territory. No taking by
either Congress or a state legislature shall be for
any purpose other than public use for a period of
at least 20 years.
Legal tender
Congress shall have the power to define legal
tender only on territory for which it has exclusive
jurisdiction, and state legislatures only on
exclusively state territory. Neither Congress nor
the states may make anything legal tender that
does not consist of, or is backed by, gold, silver, or
energy.
Occupational licensing
There shall be no occupational licensing, national,
state, or local, especially of lawyers by lawyers or
judges.
Final page
More work is needed on these draft amendments,
and also on a list of statutory and judicial rules
changes.